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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Rockingham No. 2010-274

THE STATE OF NEW HAMPSHIRE v. TIMOTHY GINGRAS Argued: September 15, 2011 Opinion Issued: November 2, 2011 Michael A. Delaney, attorney general (Thomas E. Bocian, assistant attorney general, on the brief and orally), for the State.

Stephen T. Jeffco, P.A., of Portsmouth (Stephen T. Jeffco on the brief and orally), for the defendant.

LYNN, J. The defendant, Timothy Gingras, was convicted of reckless conduct, RSA 631:3 (2007), criminal threatening, RSA 631:4, I(a) (2007), and criminal mischief, RSA 634:2 (2007), following a jury trial in Superior Court (McHugh, J.). On appeal, he challenges only the criminal threatening and reckless conduct convictions, arguing that the trial court erred: (1) in sentencing him on both convictions; (2) in failing to give his proposed selfdefense jury instruction; and (3) in instructing the jury that brandishing a firearm constituted the use of deadly force. We reverse these two convictions and remand.

I Viewed in the light most favorable to the State, the evidence was sufficient for the jury to find the following facts. On June 26, 2009, the defendant was driving on Route 125 in Epping when Andrew Mangini pulled in front of him from the left, causing the defendant to swerve to avoid hitting Mangini's car. The defendant screamed profanities at Mangini, who apologized and then tried to ignore the defendant. The defendant persisted, pulling in front of Mangini, alighting from his vehicle, and approaching Mangini's car on foot. The defendant slapped the hood of Mangini's car and continued to yell and swear at Mangini, who remained in his car. The defendant then jumped onto the hood of Mangini's car with both feet, causing damage to the vehicle. At this point Mangini became angry and got out of his car. Mangini shouted profanities at the defendant and said he would beat him up. Because Mangini was physically larger than the defendant, the defendant's attitude changed from anger to fright, and he returned to his car with Mangini following him. The defendant entered his vehicle, withdrew a handgun (for which he held a valid permit to carry) from the glove compartment, and, as Mangini approached the driver's window, pointed the gun at Mangini's chest and threatened to shoot him if he did not back away. Mangini put his hands in the air, retreated to his own car, and called 911. The police arrived and arrested the defendant shortly thereafter. II The defendant first argues that the state and federal double jeopardy clauses prohibit his convictions for criminal threatening and reckless conduct because both offenses arise out of the same conduct. We review questions of constitutional law de novo. State v. Farr, 160 N.H. 803, 807 (2010). We first consider the defendant's constitutional arguments under the State Constitution, referring to federal decisions only for guidance. See State v. Ball, 124 N.H. 226, 231-33 (1983). Part I, Article 16 of the New Hampshire Constitution protects a criminal defendant against multiple punishments for the same offense. State v. Glenn, 160 N.H. 480, 486 (2010) (citations omitted). "Two offenses will be considered the same for double jeopardy purposes unless each requires proof of an element that the other does not." State v. McGurk, 157 N.H. 765, 773 (2008) (quotation and brackets omitted). We focus upon whether proof of the elements of the crimes as charged will in actuality require a difference in evidence. State v. Ford, 144 N.H. 57, 65 (1999). "In making this inquiry, we review and compare the statutory elements of the charged offenses in light of the actual allegations contained in the indictments." State v. Liakos, 142 N.H. 726, 730 (1998) (quotation omitted).

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The indictments against the defendant in this case

Download 2010-274 The State of New Hampshire v. Timothy Gingras.pdf

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